Citation Nr: 0628931 Decision Date: 09/13/06 Archive Date: 09/20/06 DOCKET NO. 04-19 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable disability rating for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran had active service from August 1989 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims folder was subsequently transferred to the RO in Montgomery, Alabama. FINDING OF FACT The veteran's obstructive sleep apnea is manifested by sleep disturbance, causing the veteran to wake approximately 5 to 6 times per night; the veteran takes Provigil to improve wakefulness during the day; there is no objective evidence of persistent daytime hypersomnolence and, although the veteran had been issued a continuous positive airway pressure (CPAP) machine during service, he no longer uses the machine. CONCLUSION OF LAW The criteria for an initial compensable disability rating for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.16, 4.130, Diagnostic Code 6847 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2005). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's obstructive sleep apnea is currently evaluated as noncompensable under Diagnostic Code (Code) 6847. 38 C.F.R. § 4.130. Code 6847 is used to evaluate obstructive sleep apnea syndromes, whether obstructive, central, or mixed. See 38 C.F.R. § 4.97 (Schedule of ratings-respiratory system), Diagnostic Code 6847. There are four disability grades in that schedule. The first compensable rating of 30 percent is assigned when the veteran experiences persistent daytime hypersomnolence. A 50 percent rating is assigned when the veteran's condition requires the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. In this case, the Board finds that the criteria for a compensable disability rating for obstructive sleep apnea are not met. 38 C.F.R. § 4.7. The veteran reports that he wakes up 5 to 6 times per night and takes Provigil to improve wakefulness during the day. He was issued a CPAP machine during service in 1996 to help him sleep at night, but he has since stopped using the CPAP because it is uncomfortable. In this case, there is no objective evidence of persistent daytime hypersomnolence, as required for a 30 percent rating. Furthermore, the fact that the veteran has a CPAP machine and does not use it suggests that a CPAP machine is not required as contemplated by the 50 percent rating criteria under Code 6847. With regard to the veteran's statement within his substantive appeal, if the veteran's CPAP machine needs recalibration, he is welcome to take it to the nearest VA facility for repair. In any event, the fact that the veteran is not using it only provides evidence against this claim. The post-service medical records, as a whole, do not indicate that a compensable evaluation is warranted. Thus, the Board finds that the overall disability picture does not more nearly approximate the criteria for a compensable rating for sleep apnea. Id. Finally, the Board finds no reason for referral to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. First, there is no evidence of any hospitalization for obstructive sleep apnea. In addition, as of February 2003, the veteran was gainfully employed as a lumber company manager. In summary, the Board finds that the evidence is not so evenly balanced as to require resolution of doubt in the veteran's favor. 38 C.F.R. § 4.3. That is, there is no objective evidence of more significant disability from obstructive sleep apnea than what is already reflected by the evaluation currently in place. Therefore, the Board finds that the preponderance of the evidence is against a compensable disability rating for obstructive sleep apnea. The appeal is denied. The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the duty to notify. That is, by letter dated January 2004, as well as information provided in the January 2004 statement of the case, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence it was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. In addition, the January 2004 statement of the case includes the text of the regulation that implements the notice and assistance provisions from the statute. Although the veteran was not informed by the RO to provide all relevant evidence in his possession prior to the April 2003 rating decision in accordance with Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Board emphasizes that the veteran has not made any showing or allegation of any defect in the provision of notice that resulted in some prejudice toward him. Accordingly, the Board finds that the RO has provided all required notice. 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, by way of the January 2004 statement of the case, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for a compensable disability rating for obstructive sleep apnea. Although the veteran was not given notice of the requirements for establishing an effective date for any award based on his claim, the Board sees no prejudice in proceeding since it finds that the condition in noncompensable, thus rendering the question of an effective date for an award moot. With respect to the duty to assist, the RO has obtained the veteran's service medical and personnel records, VA outpatient treatment records, as well as a VA examination. In addition, the veteran provided medical records from his private psychiatrist and lay evidence in the form of personal statements. He has not identified or authorized the RO to obtain any other evidence. The Board finds no indication or allegation that additional pertinent evidence remains outstanding. Therefore, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER An initial compensable disability rating for obstructive sleep apnea is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs